ADJ12903013 · May 6, 2024

The Appeals Board preliminarily found it unclear if substantial medical evidence supported the apportionment finding, warranting reconsideration for further review.

From the decision · page 3In my discussion of the substantialness and legal validity of that opinion in the FA&O, I wrote,

Applicant sustained admitted industrial injury to cervical spine on October 21, 2019, with prior multilevel cervical fusion from 2014 injury.

Favours neutral

The prior injury and surgery were central to the apportionment dispute and medical evidence review.

Dr. Barber's apportionment opinion assigned 80% of disability to prior injury based on continuing symptoms and prior surgeries.

Favours Defendant prevailed

Her opinion was the basis for the apportionment finding under review.

From the decision · page 2In the Opinion on Decision at pages 5-6, I quoted from her initial report on apportionment as follows, "[I]t is my opinion that the prior injury [for which she reviewed medical records, including two AME reports of Dr. Conrad], is significant to current impairment. There is indication that future care and use of oral analgesics, and the combination with the expected waxing and waning of symptoms over time following the initial 2014 injury make apportionment appropriate in this case. For that reason, I would apportion 80% of the disability to the prior industrial claim which occurred in 2014, and 20% to the 2019 claim." (Joint 101, Report of 9/12/22 at p. 14.) In her supplemental report dated January 26, 2023, Dr. Barber reviews and summarizes an additional 20 pages of medical records, which are mostly MRI, CT, and x-rays of the cervical spine obtained over time and most recently as of

Provided prior apportionment opinion in 2014 injury case, rating cervical and thoracic spine PD at 43%.

His prior AME reports were reviewed by Dr. Barber and were part of the apportionment dispute.

Provided 38% whole person impairment rating and 80% apportionment to prior industrial injury based on continuing symptoms and prior surgeries.

Her apportionment opinion was central to the dispute over substantial medical evidence validity and was preliminarily reviewed by the Appeals Board.

From the decision · page 2The AME in this case is orthopedist Victoria Barber, M.D., who was also Dr. Conrad's long time professional partner before his recent retirement. In her initial report dated September 12, 2022, she provided a 38 whole person impairment (WPI) rating applying a strict rating of the AMA Guides 5th Edition, and she found that an Almaraz/Guzman rating was not necessary. (Id. at p. 5, Joint 101, Report of 9/12/22 at pp. 12-13.)

Performed cervical spine surgery (C4-C5 anterior discectomy and fusion) on September 21, 2021.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Apportionment must be based on substantial medical evidence identifying approximate percentages of disability due to injury and other factors, with explanation of nature and causation of other factors.

The Board preliminarily found it unclear if substantial medical evidence supported apportionment, warranting reconsideration for further review.

From the decision · page 5approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) The physician must also explain the nature of the other factors, how and why those factors were causing permanent disability at the time of the evaluation, and how and why those factors are responsible for the percentage of disability assigned by the physician. (Id. at 621.)

Applicant's trial brief argued Dr. Barber's apportionment opinion lacked sufficient explanation under Escobedo and did not review all prior AME reports.

From the decision · page 3"The parties stipulated that the AME's rating after adjustment for age and occupation and before apportionment is 57% PD. (MOH at p. 2, Stipulation No. 6.) Applicant's trial brief at pp. 2-3 argues that Dr. Barber's apportionment opinion is not substantial medical evidence because it does not sufficiently explain how or why she attributes 80% of the current PD to the prior injury under Escobedo. It also asserts that Dr. Barber did not review one of the prior AME reports of Dr. Conrad dated December 6, 2016, when Dr. Conrad provided his own opinion that 10% of the PD from the 2014 injury was apportionable to non-industrial causes, which included a series of earlier motor vehicle accidents and preexisting pathology in the neck. (Joint 102, Report of 12/6/16 pp. 5-6.) It appears from Dr. Barber's initial report dated September 12, 2022 (Joint 102), that although Dr. Barber reviewed two of Dr. Conrad's reports dated September 20, 2016 and February 1, 2017, she did not summarize, and presumably did not review the report of December 6, 2016 where he provides his apportionment opinion.

Defendant presented MRI evidence predating 2019 injury showing degenerative changes and disc bulges supporting apportionment.

From the decision · page 3As noted, it is the defendant's burden to establish valid apportionment, which must be based on substantial medical evidence. Defendant points out in its trial brief at p. 2, that aside from the obvious multilevel prior fusion, that Dr. Barber reviewed MRIs of the cervical spine dated February 13, 2014, and August 19, 2015, which pre-date the October 21, 2019 date of injury in this case, and document degenerative changes and a annular disc bulge at C4-5, as well as a C5-6 broad based disc bulge with osteophyte complex, prominent on the right. (Joint 101, Report of 9/12/22 at p. 11.) Having reviewed the entire record, I find and conclude that the defendant has met that burden. Dr. Barber, over the course of her two reports, found 80% apportionment to the prior injuries and related multilevel fusion, and did not change her opinion after review of additional records.